Lake Placid property dispute hangs on a handrail

May 29, 2014

LAKE PLACID - On Main Street downtown in this village, every square inch counts.

Peter Day, a real estate broker and Lake Placid resident, is the owner of a building on 2409-2411 Main St. where he runs his real estate company, Martha Day Realty, and leases to the Black Bear Restaurant. He is currently in a property dispute with his neighbor, One Main Street LLC, a new restaurant business under construction next door at 2407 Main St.

The crux of the dispute is an outdoor stairway - or, more specifically, the handrail of the stairway.

Article Photos

At left, the new restaurant on 2407 Main Street, owned by One Main Street LLC, is next to the Black Bear Restaurant and Martha Day Realty building at 2409-2411 Main St., owned by Peter Day. The property line between the two buildings is shown by the orange string, as per a survey Day paid for. (Photo — Matthew Turner)

Day said, based on a survey he spent $400 on, the company encroached over his property line by as much as 5 inches when they built a staircase between the two buildings.

Those 5 inches were worth fighting for, he decided, but not in court because he believes his neighbor would outspend him to win. Instead, he's appealing to the village.

After months of pursuing the issue with the village's code enforcement officer, James Morganson, Day took his complaint to the village board, speaking for close to an hour on Monday, May 19 asking for something to be done.

"I've requested in writing seven months ago that the building inspector have that removed because it is built over the property line," Day said at the meeting.

"The code officer found it violated the terms of construction and stopped it," Mayor Craig Randall said. "But the establishment of lines is not a problem he can reconcile."

Village Attorney Janet Bliss said Randall's statement was fair and accurate.

"It seems to me that you have to pursue your neighboring party," Randall said. "I'm not sure if the village board has any involvement here."

"I'd like it dealt with at this level," Day said. "You're basically telling me I have to go down and take him to court."

Bliss said these are private matters between two neighbors that the village can't solve.

"We do not decide here who is right and who's wrong," Bliss said. "Those decisions are governed by the Real Property Laws of the state of New York."

Trustee Jason Leon said he wanted to make sure the code enforcement office is doing its due diligence.

The survey

There are two surveys of the property line at play in the dispute. The survey conducted by One Main Street occurred first when the company built their stairwell. Day's survey was performed later, in September 2013, by Robert M. Marvin Jr., a local land surveyor.

"The stairwell gate and walk way railing along the south side of the No. 1 Main Street building trespass upon your property from 0 to 5 inches, more or less, from a point between the building fronts to a point midway down the lower walk," Marvin wrote. "Your (stairwell) has 8 inches of clearance from the plywood sheathing to the property line and 6 3/8 inches from the drop edge flashing to place a rain gutter."

In between the two properties, Marvin's orange surveyor line still stands, showing the railing sticking out past the line.

Morganson has seen both opposing surveys.

"It's a civil matter," he said.

Stop-work orders

Morganson said he gave out two "exact same" stop-work orders, one to each property owner. Day got the first in September of last year, halting the erecting of a gutter along his building near the property line. Morganson said he gave Day the order after reviewing the first survey from One Main Street LLC. The second stop-work order was given to One Main Street LLC after Day's survey was conducted in response.

Day said Morganson demanded he remove the gutter immediately and claims he was treated unfairly compared to his neighbor.

"He (Morganson) said to me, 'I make the rules around here,'" Day said.

"He volunteered to do that," Morganson said of removing the gutter.

Morganson said he is "not out to get" Day.

"I've taken phone calls from him every day of the week," Morganson said.

Day said Morganson is out to get "payback." Day has complained to the Department of State about Morganson in the past, but those complaints did not result in any action.

Courtroom next?

It's unclear who exactly owns One Main Street LLC. James Brooks, a lawyer from Lake Placid, represents the company and didn't name its principals.

"In the long run we will probably end up in a courtroom having some judge resolve Mr. Day's claim," Brooks said.

Brooks said his client had a surveyor make and check the property line. The case hinges on whether there has been any violation of any law, he said.

Day sent a letter last year informing the owner of the staircase that he would remove the encroaching portion himself, but he hasn't yet taken any action. He is also hesitant to sue his neighbor, whom he says is very wealthy.

"The expense of that is huge; it could cost a substantial sum," Day said. "They are trying to take my land by forcing litigation."

"That's too bad for him," Brooks said. "If he thinks there is a problem, he should use his available remedies in New York state court. He shouldn't use the Adirondack Daily Enterprise to do it."